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Wallace v. A. R. Perine Co.

Decided: May 4, 1934.

EDNA M. WALLACE, PLAINTIFF-RESPONDENT,
v.
A. R. PERINE COMPANY, DEFENDANT-APPELLANT



On appeal from the Essex County Circuit Court.

For the appellant, Kellogg & Chance.

For the respondent, Edward R. McGlynn (Franklin J. McGlynn, of counsel).

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This is the defendant's appeal from a judgment in favor of the plaintiff below entered upon the verdict of a jury.

The plaintiff's case was that she was riding in an automobile upon the public highway, which was negligently hit by an automobile admittedly owned by the defendant A.R. Perine Company, and driven by that company's employe, and that she was injured in the collision.

The only ground of appeal is that "the trial judge erred in denying defendant's motion for a direction of the verdict for the defendant."

We think that the trial judge rightly denied the motion.

The motion was based upon this ground only: "That at the time this accident occurred the driver of the A.R. Perine Company car was not acting in the scope of his employment."

Now, whether or not the driver was acting within the scope of his employment at a given time is generally decided on

presumptions and inferences from ascertained facts. Paiewonsky v. Joffe, 101 N.J.L. 521.

The fact that an automobile (as here) was being driven by an employe of the owner creates the presumption of fact that the employe was acting within the scope of his employment; which presumption can be rebutted only by uncontradicted ...


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